UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOEL THOMAS, 

 Defendant - Appellant. 

No. 22-1149 

(D.C. No. 1:19-CR-00397-CMA-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. 

_________________________________ 

Joel Thomas, proceeding pro se, appeals the district court’s denial of his 

request to modify conditions of his supervised release requiring sex offender 

treatment and keystroke monitoring of his electronic activities. The district court 

found that the nature and circumstances of Thomas’s child pornography offense, 

a psychologist report recommending further treatment and monitoring, and other 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 10, 2023

Christopher M. Wolpert 

Clerk of Court

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facts supported keeping the conditions in place. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm. 

I. Background 

 In 2019, Thomas pled guilty to one count of accessing child pornography with 

an intent to view in violation of 18 U.S.C. § 2252A(a)(5)(B). He admitted that in 

2012 and 2013, he accessed websites on the dark web that facilitated transmission of 

child pornography and discussions between pedophiles. His posts on the sites 

described his use of encryption technology to securely maintain his “entire collection 

[of child pornography] on one device.” R., vol. 1 at 31. Authorities later found 

encrypted containers on Thomas’s computer but could not access their contents 

“[d]ue to the level of encryption.” Id. at 35. Authorities also discovered Thomas had 

installed software on his computer that enabled “the secure deletion of files and 

removal of remnant data.” Id. 

 Thomas sought a below-guidelines sentence because he had abided by the law 

during the roughly six-year period between the government’s 2013 seizure of his 

computer and its 2019 indictment, had begun sex addiction therapy, and had started 

attending Sex Addicts Anonymous (SAA) meetings. To support his request, Thomas 

underwent a mental health evaluation and submitted the results to the court. The 

evaluating psychologist recommended he undergo further sex offender treatment and 

that his digital activity be strictly monitored. 

 In January 2020, the district court sentenced Thomas to a below-guidelines 

term of 48 months in prison, to be followed by five years of supervised release. The 

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court imposed the following special conditions of supervision pertinent to this 

appeal: 

1. You must participate in and successfully complete a sexoffense specific evaluation and/or treatment program as approved by 

the probation officer. . . . 

. . . . 

4. . . . Any computer or Internet capable device must be able to be 

effectively monitored by and comply with the requirements of 

monitoring software utilized by the Probation Office. . . . 

. . . . 

6. You must allow the probation officer to install 

software/hardware designed to monitor computer activities on any 

computer you are authorized by the probation officer to use. The 

software may record any and all activity on the computer, including 

the capture of keystrokes, application information, Internet use 

history, email correspondence, and chat conversations. 

Id. at 47. Consistent with the appeal waiver in his plea agreement, Thomas did not 

appeal. 

 Thomas instead filed a motion in 2022 to modify his supervised release 

conditions. Regarding special condition one, he asked the court to substitute his 

participation in SAA for the requirement that he undergo “a sex-offense specific 

evaluation and/or treatment program.” Id. He argued the special condition mandated 

a “mental health treatment,” id. at 118, and that the court lacked a basis for imposing 

it because the evidence did not establish he had a “mental health condition,” id. at 

120. He contended the court could not determine he needed mental health treatment 

“unless a[n] exam [wa]s performed and a report [wa]s filed by a court ordered 

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psychologist.” Id. at 118. And he asserted that he did not need sex offender 

evaluation and treatment because he had voluntarily seen a therapist before he went 

to prison and planned to participate in SAA upon his release. 

 Regarding special conditions four and six, Thomas asked the court to eliminate 

the requirement that he submit to keystroke monitoring of his electronic activity. He 

argued that he did not present a risk to public safety and that the goals of the 

monitoring could be adequately achieved through unannounced searches of his home 

and personal property. 

 On March 29, 2022, the district court denied Thomas’s request to modify 

special conditions one, four, and six. Regarding special condition one, it reasoned 

the nature and circumstances of Thomas’s offense warranted sex offender evaluation 

and treatment, which the Sentencing Guidelines recommend for all sex offenders. 

See U.S. Sent’g Guidelines Manual (USSG) § 5D1.3(d)(7)(A) (U.S. Sent’g Comm’n 

2021). It also said Thomas’s refusal to participate in sex offender treatment while in 

prison further supported special condition one. Regarding special conditions four 

and six, the district court reasoned the nature and circumstances of Thomas’s offense 

warranted keystroke monitoring, noting Thomas used a computer to commit his 

offense and employed sophisticated techniques to evade detection. It further 

observed “the Sentencing Commission recommends limiting computer use or 

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otherwise imposing monitoring of computer and Internet use in cases like this one.” 

R., vol. 1 at 152 (citing USSG § 5D1.3(d)(7)).1

 

 On April 8, 2022, Thomas filed a motion asking the district court to reconsider 

its order as to special conditions one, four, and six. In this motion, Thomas mostly 

re-hashed arguments from his initial motion. But he also argued the district court 

incorrectly found he had refused to participate in sex therapy in prison, and that it 

exaggerated his technological expertise to support its ruling. 

The district court denied Thomas’s motion for reconsideration by order entered 

April 28, 2022. It clarified that the psychologist report Thomas submitted at 

sentencing supported its initial imposition of special condition one and that Thomas’s 

voluntary participation in therapy and SAA, while laudable, did not support 

modification of special condition one. The district court further found “no error in its 

previous statement that [Thomas] has declined . . . sex offender treatment” in prison, 

id. at 184, relying on a declaration submitted by a prison employee. And it reiterated 

its position that the circumstances surrounding Thomas’s offense warranted 

imposition of special conditions one, four, and six. 

Thomas filed a notice of appeal on May 6, 2022. 

1

 In its order, the district court also granted Thomas’s request to remove 

special conditions seven to eleven because those special conditions related to his 

finances and he paid his restitution in full. The district court’s removal of those 

special conditions is not at issue in this appeal. 

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II. Discussion 

A. Orders on Appeal 

The government contends “Thomas appealed only the denial of his motion for 

reconsideration,” such that “this [c]ourt has jurisdiction only to review the denial of 

reconsideration.” Aplee. Br. at vii–viii (citation omitted). We disagree. 

A notice of appeal must “designate the judgment—or the appealable 

order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). But a 

“notice . . . need not be perfect.” Sines v. Wilner, 609 F.3d 1070, 1074 (10th Cir. 

2010). We “liberally construe the requirements of Rule 3,” Smith v. Barry, 502 U.S. 

244, 248 (1992), and Thomas’s pro se filings, see Sines, 609 F.3d at 1074. Thomas’s 

notice of appeal is not a model of clarity regarding the order on appeal. But the 

notice references both the initial order denying Thomas’s motion to modify his 

supervised release conditions (by citing district court docket entry 61) and the order 

denying his motion for reconsideration (by citing district court docket entry 68 and 

the date of the order). We therefore conclude the notice confers jurisdiction to 

review both orders. 

The government also contends that because Thomas did not file his notice of 

appeal until May 6, 2022, the notice was untimely with respect to the district court’s 

March 29, 2022 order denying Thomas’s motion to modify his supervised release 

conditions. See Fed. R. App. P. 4(b)(1)(A)(i) (requiring a notice of appeal to be filed 

within 14 days of the applicable order). We disagree. Thomas filed a timely motion 

for reconsideration on April 8, 2022, see United States v. Randall, 666 F.3d 1238, 

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1242 (10th Cir. 2011), rendering the March 29 order non-final. See United States v. 

Ibarra, 502 U.S. 1, 6–7 (1991). As a result, the time for Thomas to file a notice of 

appeal did not begin to run until the district court entered its April 28, 2022 order 

denying the motion for reconsideration. See id. at 4–6 & n.2. And Thomas filed his 

notice of appeal within 14 days of that order. His notice was therefore timely with 

respect to both orders. 

B. Merits 

A district court has authority to “modify, reduce, or enlarge the conditions of 

supervised release, at any time prior to the expiration or termination of the term of 

supervised release.” 18 U.S.C. § 3583(e)(2). “The only statutory requirements for 

modification are that the district court consider [the factors set forth in 18 U.S.C. 

§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)], follow 

the procedure outlined in Fed. R. Crim. P. 32.1, and ensure that the modified 

conditions are consistent with the requirements applicable to all conditions of 

supervised release.” United States v. Begay, 631 F.3d 1168, 1172 (10th Cir. 2011).2

 

“[A] district court retains the discretion to determine whether there are valid reasons 

2

 The enumerated § 3553(a) factors require the court to consider “the nature 

and circumstances of the offense and the history and characteristics of the 

defendant”; the need “to afford adequate deterrence to criminal conduct”; the need 

“to protect the public from further crimes of the defendant”; the need “to provide the 

defendant with needed educational or vocational training, medical care, or other 

correctional treatment”; “the [applicable] kinds of sentence and the [applicable] 

sentencing range”; “any pertinent policy statement”; “the need to avoid unwarranted 

sentencing disparities”; and “the need to provide restitution.” 

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to modify,” id. at 1173, and nothing in the statute “require[s] a district court to make 

particular findings” when deciding a motion to modify, id. at 1171. A district court 

can decide a motion to modify “based only on evidence that was available at the 

original sentencing.” Id. at 1172 (internal quotation marks omitted). 

“[A] motion to reconsider may be granted when the court has misapprehended 

the facts, a party’s position, or the law.” United States v. Warren, 22 F.4th 917, 927 

(10th Cir. 2022) (internal quotation marks omitted). “The specific grounds which 

allow granting such motions include (1) an intervening change in the controlling law, 

(2) new evidence previously unavailable, and (3) the need to correct clear error or 

prevent manifest injustice.” Id. (internal quotation marks omitted). 

We review the district court’s ruling on a motion to modify for an abuse of 

discretion. See United States v. Pugliese, 960 F.2d 913, 915 (10th Cir. 1992). 

“Likewise, we review the district court’s denial of a motion for reconsideration for 

abuse of discretion.” Warren, 22 F.4th at 927 (internal quotation marks omitted). “A 

district court abuses its discretion only where it (1) commits legal error, (2) relies on 

clearly erroneous factual findings, or (3) where no rational basis exists in the 

evidence to support its ruling.” United States v. Alfred, 982 F.3d 1273, 1279 

(10th Cir. 2020) (internal quotation marks omitted). “A district court does not abuse 

its discretion if its ruling falls within the bounds of permissible choice in the 

circumstances and is not arbitrary, capricious, or whimsical.” United States v. 

Armajo, 38 F.4th 80, 84 (10th Cir. 2022) (internal quotation marks omitted). 

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Many of Thomas’s arguments proceed from the premise that in denying his 

modification motion, the district court effectively re-imposed the special conditions 

of supervised release it had ordered at his sentencing. From this premise, Thomas 

presumes the district court had to satisfy the standards applicable to imposing special 

conditions of supervised release.3

 And he argues the district court erred because it 

failed to satisfy those standards. Regarding special condition one, he argues the 

district court erred by failing to order a psycho-sexual evaluation before imposing it 

and by failing to sufficiently analyze the propriety of this special condition. 

Regarding special conditions four and six, he argues the conditions violate his Fourth 

Amendment rights and that the district court erred by failing to provide sufficient 

reasons supporting their imposition. 

3

 In United States v. Martinez-Torres, this court explained that special 

conditions of supervised release must meet three statutory tests. 

The conditions of release must (1) be “reasonably related” to the 

nature and circumstances of the offense, the defendant’s history and 

characteristics, the deterrence of criminal conduct, the protection of the 

public from further crimes of the defendant, or the defendant’s 

educational, vocational, medical, or other correctional needs; 

(2) “involve[ ] no greater deprivation of liberty than is reasonably 

necessary” for the purposes of deterring criminal activity, protecting the 

public, and promoting the defendant’s rehabilitation; and (3) be 

consistent with any pertinent policy statements issued by the Sentencing 

Commission. 

795 F.3d 1233, 1236 (10th Cir. 2015) (alteration in original) (quoting 18 U.S.C. 

§ 3583(d)). And “before a district court can impose upon a defendant a special 

condition of supervised release, the district court must analyze and generally explain 

how, with regard to the specific defendant being sentenced, the special condition 

furthers the three statutory requirements set out in 18 U.S.C. § 3583(d).” United 

States v. Koch, 978 F.3d 719, 725 (10th Cir. 2020). 

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We reject all these arguments because the district court did not impose any 

special conditions of supervised release when it denied Thomas’s motion. The court 

had imposed the challenged special conditions of supervised release years earlier in 

its judgment that Thomas did not appeal. Thomas cannot now challenge the legality 

of those conditions or the process leading to their imposition. See Begay, 631 F.3d at 

1172–73 (recognizing case law holding that “a district court does not have the 

authority to modify conditions of supervised release based on an argument that a 

particular condition is unlawful, because lawfulness is not one of the § 3553(a) 

factors listed in 18 U.S.C. § 3583(e)”; instead, “any challenge to the legality of a 

condition of supervised release must be raised on direct appeal or in a habeas 

petition” (citing United States v. Lussier, 104 F.3d 32, 34 (2d Cir. 1997)); see also

United States v. Morris, 37 F.4th 971, 976 (4th Cir. 2022) (observing that challenges 

to conditions of supervised release “rest[ing] on the factual and legal premises that 

existed at the time of the defendant’s sentencing are impermissible” (brackets and 

internal quotation marks omitted)); United States v. Cordero, 7 F.4th 1058, 1070 

(11th Cir. 2021) (“join[ing] the Second, Fifth, and Ninth Circuits in holding that 

§ 3582(e)(2) cannot be used to challenge the legality or constitutionality of 

supervised release conditions”); United States v. Gross, 307 F.3d 1043, 1044 

(9th Cir. 2002) (holding “§ 3583(e)(2) may not be used as a backdoor to challenge 

the legality of a sentence” (internal quotation marks omitted)). 

We now turn to Thomas’s arguments pertinent to modification. Regarding 

special condition one, Thomas argues the district court should have modified it 

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because (1) he had already undergone sex offender treatment and “[i]t would be 

irrational for him to complete the treatment again when the outcome would be the 

same,” Aplt. Reply Br. at 5; (2) his proposed alternative of attending SAA meetings 

would be more effective; and (3) the effectiveness of his prior therapy and SAA 

attendance, as proven by his remorse and law abidance, renders other treatment 

unnecessary. He does not argue the district court committed legal error or based its 

ruling on an unsupported finding of fact. 

We conclude the district court did not abuse its discretion in refusing to 

modify special condition one in either order. The district court based its decision in 

part on the psychologist report Thomas submitted in connection with his sentencing. 

That report recommended additional treatment beyond what Thomas had undergone 

already. The district court further based its decision on record evidence Thomas had 

foregone an opportunity to get treatment in prison. And the district court implicitly 

rejected Thomas’s argument that his remorse and law abidance supported 

modification by finding the nature and circumstances of his offense, combined with 

his history and characteristics, continued to support special condition one, which the 

Sentencing Guidelines recommend in cases like this one. The district court’s 

reasoned application of the facts to deny both modification and reconsideration fell 

within the bounds of permissible choice. 

Regarding special conditions four and six, Thomas argues the district court 

should have eliminated keystroke monitoring because he has expressed remorse and 

accepted responsibility for his actions, has not accessed child pornography since 

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2013, and is not a threat to the public. But he does not argue the district court 

committed legal error or relied on an unsupported finding of fact. 

We conclude the district court did not abuse its discretion in refusing to 

modify special conditions four and six in either order. The district court found that 

the nature and circumstances of Thomas’s offense continued to support keystroke 

monitoring in part because Thomas “committed his offense solely through use of the 

computer and the Internet, and he demonstrated sophisticated computer skills through 

his access of child pornography websites on the dark web and his encryption of his 

laptop.” R., vol. 1 at 151. It also found support for keystroke monitoring in 

Thomas’s encouragement to “others on those websites to stay safe.” Id. at 152 

(internal quotation marks omitted). And it further found support for this condition in 

the Sentencing Guidelines’ recommendation that child pornography offenders be 

subjected to monitoring. Again, the district court’s reasoned application of the facts 

to deny both modification and reconsideration fell within the bounds of permissible 

choice. 

III. Conclusion 

 We affirm the district court’s order denying Thomas’s motion for modification 

and the district court’s order denying Thomas’s motion for reconsideration. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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